Cases and authorities

CRIME – Appeals – Appeal against sentence – reckless infliction of grievous bodily harm – victim a 9 week old infant – fractured ribs – “karate chop” – squeezing – additional assaults resulting in fractured wrist and bruising to face – multiple assaults – twenty year old ill equipped father – personal history of trauma, dysfunction and violence – psychologist’s report –– whether sentencing judge failed to assess moral culpability – whether failure to apply “Bugmy principles” – whether Judge erred in approach to youth and immaturity – ex tempore judgment on sentence

CRIME – appeals – appeal against sentence – where applicant pleaded guilty to counts of sexual intercourse with young person under his special care – where applicant was teacher of victim – whether sentencing judge erred in not taking into account as mitigating factors that applicant did not have previous convictions and was a person of good character – whether sentence imposed was manifestly excessive – where significant amount of evidence attesting to applicant’s character – where some weight should have been given to good character of applicant – appeal allowed

EVIDENCE — opinion evidence — exceptions — expert opinion — what use may be made of assumptions made by an expert about a hypothetical situation

COMMERCE – Restraint of trade – Enforcement and remedies – Injunction

CRIMINAL LAW – trial conducted during pandemic – whether individual juror should be discharged – where juror positive for COVID-19 – “juror’s ability to perform the functions of a juror” – whether continuing trial with 10 jurors likely to cause substantial miscarriage – precarious situation of trial – need for further legislative reform – desirability of discretion in trial judge to empanel a greater number of jurors during pandemic

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – leave sought subsequent to commencement of proceedings

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – leave sought subsequent to commencement of proceedings

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – leave sought subsequent to commencement of proceedings

WORKERS COMPENSATION — Disease injury – where first defendant employed by Woolworths from February 1995 – where first defendant tripped on step and suffered injuries to her right hip, right wrist and right ankle and consequential injury to her left hip – first defendant made a claim under s 66 of the Workers Compensation Act 1987 (NSW), for permanent impairment – where plaintiff disputed liability – dispute referred to the Workers Compensation Commission for determination – dispute referred for medical assessment – appeal against medical assessment – where Appeal Panel declined to make a deduction under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), in respect of disease injury to first defendant’s right hip by reason of a pre-existing condition – whether Appeal Panel exceeded its jurisdiction by making ‘liability finding’ as between plaintiff and first defendant and departing from the findings of the Arbitrator at the Workers Compensation Commission

EVIDENCE — opinion evidence — exceptions — expert opinion — whether opinion wholly or substantially based on specialised knowledge

CIVIL PROCEDURE – application for settlement approval on behalf of infant - approval of settlement under s 76 of the Civil Procedure Act

CRIMINAL LAW – procedure – application for discharge of the jury – cross-examination of accused – where photographs shown to accused in witness box undermine accused’s version of events – whether Prosecutor had disclosed photographs – whether reference to photographs being available for inspection sufficient to fulfil disclosure requirements – where relevantly identical images disclosed in ISRAPs – whether any relevant unfairness – heat of the battle – limited capacity to impact on assessment of accused’s credibility – no relevant unfairness – no prejudice justifying discharge of jury

COSTS – Party/Party – costs of successful application for winding up of company on just and equitable ground – costs of unsuccessful cross-summons for oppression suit and buy-out order –­ whether costs of the applicant for winding up order/cross-defendant to cross-summons should be paid out of company’s assets or by the second defendant/cross-claimant shareholder –where irretrievable breakdown of relations and loss of confidence between equal shareholders and directors in quasi-partnership and fault on both sides – where second defendant’s cross-summons of oppression unsuccessful and winding up application opposed and conduct of defendant was a significant factor in court concluding just and equitable ground established

EASEMENTS – application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway – where no other practical means of vehicular access to plaintiffs’ land presently exists – whether such an easement is reasonably necessary given the existence of an undeveloped Crown road – where effects of proposed easement relatively minor – whether lack of development consent for plaintiffs’ use of their land as a residence and cat-breeding facility entails an absence of reasonable necessity or the existence of inconsistency with the public interest – whether discretion to impose easement should not be exercised due to plaintiffs’ unreasonable conduct – whether the plaintiffs would obtain a windfall gain by imposition of an easement

CIVIL PROCEDURE — removal of party — principles at [41]-[49] — bank has charge over company’s assets – company enters into building contract with plaintiff – company obtains judgment against plaintiff for progress payment under s16(2)(a), Building and Construction Industry Security of Payment Act 1999 (NSW) – bank’s charge attaches to judgment debt – company goes into liquidation – bank assigns rights – plaintiff commences proceedings against company and bank, claiming neither entitled to judgment debt by reason of s34, Building and Construction Industry Security of Payment Act – assignee joined – whether bank a proper or necessary party following assignment — bank does not “have or claim an interest in the subject matter” — bank removed.

REPRESENTATIVE PROCEEDINGS – Industrial Law – recovery of overtime and other award entitlements – whether representative proceedings can be maintained to recover group members’ entitlements under Part 2 of Chapter 7 of Industrial Relations Act – whether scheme for recovery incompatible with Part 10 of Civil Procedure Act – s 376 of the Industrial Relations Act – alternative proceeding to recover award as a debt due – not an action under Part 2 of Chapter 7 of the Industrial Relations Act – can be the subject of proceedings under Part 10 of the Civil Procedure Act – draft separate questions – consequential amendments

CONTRACTS — Formation — Whether written and oral statements by or on behalf of the defendant developer to the plaintiff subcontractors amount to a contractual offer to pay their outstanding invoices and the cost of works required to complete the development ESTOPPEL — Promissory estoppel — detrimental reliance — Whether by making the alleged representations the defendant is estopped from denying and making payments in accordance with the plaintiffs’ assumption that if the plaintiffs continued to do the building works they would be paid by the developer

CORPORATIONS — Misleading or deceptive conduct — “No transaction” case — Where defendants made various warranties and representations to the plaintiffs as to their ownership of valuable intellectual property, and the value of their company — Representations as to future matters — Silence or non-disclosure — Where plaintiffs induced to invest in defendants’ company on the basis of representations — Where defendants’ company not a going concern — Whether plaintiffs entitled to recover totality of their investments CORPORATIONS — Misleading or deceptive conduct — Contributory negligence and proportionate liability CONTRACTS — Breach of contract — Where defendants made various contractual warranties which were in fact false — Causation — Whether falsity of warranties causative of plaintiffs’ loss

CIVIL PROCEDURE – Application for an extension to file a summons seeking leave to appeal from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal – Where no proper grounds of appeal articulated – Where extension of time would be futile – Where a refusal of an extension of time would not be unjust in circumstances where the applicant sought to re-agitate a series of matters consistently determined against her in the context of a dispute dating back to 2018 – Where the applicant required an leave to appeal even if an extension of time were granted – Where reasons of the Panel disclosed no error such that any appeal would have little prospect of success– Application for extension of time refused – Summons dismissed

CRIMINAL LAW – interlocutory appeal – accused seeks to adduce co-accused’s conversation with police – excluded by trial judge – accused applies for separate trial to adduce evidence – probative value of evidence – whether evidence exculpatory – whether risk of injustice to accused if not able to adduce evidence in separate trial – leave to appeal refused.

EVIDENCE – cross-examination of accused – limits on cross-examination – credibility evidence – whether evidence solely relevant to credibility – whether subject matter was “evidence in relation to which defendant is being prosecuted” – departure from scene of alleged crime – objection taken to diagram marked by accused – where diagram explained evidence given earlier and to which no objection taken

SUCCESSION — Contested probate — Practice and procedure — Caveats — Caveat against grant —Notice of motion for an order that caveat cease to be in force — Whether there is a doubt as to whether the will should be admitted to probate sufficient to warrant investigation in a contested probate suit — Caveator’s case not frivolous but bona fide and reasonable

EVIDENCE – Opinion evidence – Exceptions – Expert evidence – Evidence Act 1995 (NSW) s 79 – Makita v Sporules (2001) 52 NSWLR 705 – Whether evidence is admissible? – Inadmissible

CIVIL PROCEDURE – default judgment – setting aside – UCPR 36.16 – bona fide defence on merits – explanation of delay – unsatisfactory evidence – no defence on merits or explanation of delay – application refused CIVIL PROCEDURE – default judgment – setting aside – irregularity in statement of claim – UCPR 36.15 – s 63 Civil Procedure Act – types of irregularities that will necessitate setting aside – omission of material facts necessary to support the pleaded cause of action – no such errors found – application refused

SUCCESSION — PROCEDURE — Family provision — Plaintiff, a litigant in person - Application by Plaintiff for adjournment of the hearing during the course of the hearing — Consideration of procedural history and the overarching purposes of Civil Procedure Act — Application refused PROCEDURE - Where Plaintiff’s affidavits read but she declined subsequently to enter the witness box to be cross-examined — UCPR r 35.2 — Plaintiff informed of consequences of her refusal, namely retrospectively treating affidavits as not read, but she maintained that she was not prepared to be cross-examined without legal representation - Plaintiff aware before the hearing commenced that Defendant intended to raise credit issues - Plaintiff’s case fails for lack of evidence - Proceedings dismissed

INCORPORATED ASSOCIATION — Members’ rights and remedies — Whether winding up on just and equitable grounds should be ordered — Whether winding up order should be stayed for period.

CONTRACTS – construction and interpretation - identification of parties to the agreement – use of surrounding circumstances and post-contractual conduct to identify parties – whether the first and third defendants were borrowers under the loan agreements EQUITY – unconscionable conduct – whether receipt of monies was unconscionable – whether constructive trust arising from collapse of joint endeavour or from knowledge of source of monies LIMITATION OF ACTIONS – debt – extension of limitation period by confirmation – acknowledgement in declaration – whether confirmation made by second defendant as agent for first and third defendants

CIVIL PROCEEDINGS – Felons (Civil Proceedings) Act 1981 – leave to commence proceedings

CIVIL PROCEEDINGS – Felons (Civil Proceedings) Act 1981 – leave to commence proceedings

COSTS – determination of whether to apportion costs – whether to make no order as to costs.

ADMINISTRATIVE LAW – ground of review other than procedural fairness – error of law – statutory construction – construction of s 276 of the Crimes (Administration of Sentences) Act 1999 (NSW) – construction of “risk to public health” – whether duty to accord procedural fairness – whether duty to receive submissions – whether duty to complete statutory task once statutory task embarked upon ADMINISTRATIVE LAW – antecedent and substantive decisions in relation to exercising power under s 276 of the Crimes (Administration of Sentences) Act 1999 (NSW) – whether reasonable basis for antecedent decision – whether impermissible gloss or gateway imposed in relation to substantive decision

CIVIL – Crimes (High Risk Offenders) Act 2006 – preliminary hearing – interim relief – application for appointment of qualified psychiatrists and/or registered psychologists under s 7(4) – application for interim detention order pursuant to ss 18A and 18C – application for interim supervision order pursuant to ss 10A and 10C – principles re preliminary hearings – unacceptable risk – mandatory considerations – orders

EVIDENCE – Hearsay – Exceptions – First-hand hearsay exceptions– Unavailability of persons – “All reasonable steps” – Factors to be taken into account – Evidence Act 1995 (NSW), s 63

SUCCESSION – Family Provision – claim by an only child, an adult son, for provision from the estate of his deceased father under Succession Act 2006, Chapter 3 – the plaintiff is an eligible person – the deceased father's will leaves the deceased’s estate to his sister – the deceased and the plaintiff's mother were divorced after a short marriage and the deceased did not remarry – in a Succession Act, s 100 statement the deceased explains the exclusion of the plaintiff from his will on grounds of animosity, an assault and an irretrievable breakdown of their relationship – whether the plaintiff and the deceased were estranged – whether the relationship between the plaintiff and the deceased was as described in the deceased’s s 100 statement – whether the nature of the plaintiff’s relationship with the deceased precludes, or whether otherwise on discretionary grounds the Court should not make, further provision for the plaintiff out of the deceased’s estate – the plaintiff’s financial needs not in issue – whether the son requires further provision for his proper maintenance, education and advancement in life from the deceased’s estate and if so what is the appropriate quantum of such provision.

ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether decision maker exceeded statutory role by determining asserted error on the merits ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether decision maker exceeded his bounds of authority by declining to refer a matter to a review panel where there was significant differences of opinion among medical practitioners ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether the inevitable result of the presence of conflicting medical opinions is that there must be reasonable cause to suspect that the medical assessment is incorrect in a material respect ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW), s 63(3) –– whether primary judge erred in ordering that the medical assessment be referred to a review panel rather than referring the matter back to a proper officer

CRIMINAL LAW – appeal – appeal against sentence – aggravated robbery – whether sentencing judge erred in finding that the level of violence used in the offence was extreme – whether sentence was manifestly excessive

CRIMINAL LAW – appeal – appeal against sentence – making documents connected with preparation for a terrorist act – whether sentencing judge erred in failing to have regard to the utilitarian value of the plea of guilty – need independently to re-exercise the sentencing discretion

CIVIL PROCEDURE — Court administration — Case management – where previous orders made not complied with by the parties – where hearing date three months away – whether further orders should be made with respect to finalisation of evidence – purposes of judicial case management

COSTS – Party/Party – Bases of quantification – Indemnity basis – Calderbank offer made before commencement of proceedings – No issue of principle

High Risk Offenders – Interim Supervision Order – unacceptable risk – serious sex offences – defendant’s consent to ISO and to conditions – Court satisfied on matters alleged that defendant poses unacceptable risk – satisfied to high degree of probability – ISO issued.

CRIMINAL LAW – trial conducted during pandemic – whether individual juror should be discharged – where juror positive for COVID-19 – “juror’s ability to perform the functions of a juror” – definition of “diagnosed person” – Public Health Orders – whether continuing trial with 11 jurors likely to cause substantial miscarriage – magic – “historical, superstitious, commercial and religious usages of the number twelve” – proper exercise of discretion

CRIME – jury trial – accused on bail – accused tested positive for COVID-19 and required to self-isolate for seven days – joint application by parties for accused to appear at trial by audio-visual link – application of s.22C(3A) Evidence (Audio and Audio Visual Links) Act 1998 – direction given for accused to appear at trial by audio-visual during period of self-isolation

LAND LAW — Caveats — Extension of operation of caveat — whether serious question to be tried that beneficiary under a will has equitable interest in specified property — where property to be held on trust for beneficiaries subject to right to reside — whether executorial functions completed and property transmitted — where claims of fraudulent breach of trust by trustee by transferring interest in property to defendant as joint tenant and mortgaging property — whether serious question to be tried that caveator has mere equity or interest based on constructive trust — balance of convenience factors — extension granted until further order

MEDICAL NEGLIGENCE – interrogatories – interrogatories concerning medical records – where plaintiffs foreshadow suspicions about the authenticity of defendant’s medical records – whether plaintiffs’ concerns should be particularised before requiring the defendant to answer interrogatories on that issue

PRACTICE AND PROCEDURE – application for leave to amend statement of claim – no issue of principle CORPORATIONS – statutory derivative action – whether leave should be granted to allow applicant to bring proceedings on behalf of the two companies – where applicant is shareholder of each company – where applicant is also a beneficiary of the trust for which one of the companies acts as trustee – where applicant may also bring proceedings in capacity as beneficiary of the trust – whether probable that companies will bring proceedings themselves – whether applicant acting in good faith in seeking to bring proceedings – whether in the best interests of each company that leave be granted – whether proposed proceedings involve a serious question to be tried – where oppression under the Corporations Act 2001 (Cth), s 232 pleaded but means of redress under s 233 may not be available as assets of one company held on trust

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order

EQUITY – Fiduciary duties – Breach – Whether fiduciary authorised to withdraw sums in question CONTRACT – Existence of agreement – Authorisation by agent – Whether agreement enforceable per s 54A of the Conveyancing Act 1919 (NSW) – Breach – Termination – Whether specific performance available as a remedy CONTRACT – Oral agreements – Existence of agreement – Terms of the agreement – Whether the loan under the alleged agreement repayable on demand LIMITATION OF ACTIONS – Whether payments made as interest or in repayment of the loan per s 54(2)(a)(ii) of the Limitations Act 1969 (NSW)

CIVIL PROCEDURE - review of decision of Common Law Registrar refusing to set aside part of a subpoena addressed to a “non-party” – non-party is sole director of the plaintiff – principles for review – no interests of justice requiring the decision be set aside – case management – overriding purpose

APPEAL – civil procedure – stay of judgment pending appeal – undertaking proffered by appellant – stay granted

CRIME – appeal – sentence – terrorism offence – attempt to murder by knife attack – victim survived – no challenge to objective seriousness assessment – use of non-causative psychiatric condition in sentencing – manifest excess – sentence stern but not manifestly excessive for objective seriousness – no error of principle or unidentified error